-Opatola Victor Esq.
Recently, the Governor of Ebonyi State, Mr.Umahi was sacked by the Judgement of the Federal High Court for defecting from PDP to APC. This judgement has led to a lot of arguments as to whether or not the Supreme Court in the Cases of CPC v OMBUGADU and OZOMGBACHI v. DENNIS AMADI & Ors held that votes belongs to the candidates not the party.
After a careful perusal of the cases, it becomes obvious that nowhere did the Court mention or infer that votes belongs to the candidates and not the party in an election.
Below are The Case Analysis of Amaechi v. INEC, CPC v OMBUGADU and OZOMGBACHI v. DENNIS AMADI & Ors
A). Amaechi v. INEC & Ors.
First, let’s have in mind that the Supreme Court made quite a lot of decisions in this case.
The issue of Votes belonging to the Party was majorly brought to the fore by the Supreme Court decision in Amaechi v INEC &Ors. Where the Court ruled that the Votes belongs to the Party. After the decision in the case of Ameachi, the Electoral Act was amended and section 141 was introduced.
Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms:
“An election tribunal or Court shall not under any circumstance declare any person Winner of an election in which such a person has not fully participated in all the stages of the said election.”
By the above provision, the National Assembly has set aside the decision of this court in Amaechi v. INEC (2008) only to the extent that individuals who do not participate in the whole stages of election cannot be declared as winner by a court or tribunal unlike Amaechi’s case.
So this means that the decision of Amarachi is of two levels
- That individuals who didn’t take part in the whole stages of election can be declared winner of an election
-
The(1) above is so because votes belongs to the party.
Amaechi case stating that parties win election was decided on the strength of the Constitution which is superior and the amendment of the electoral act cannot change the Constitution.
Section 141 only cure the first leg and not the second leg. Which is that that individuals who didn’t take part in the whole stages of election can be declared winner of an election
Amaechi case was reached on the strength of the community reading of a lot of provisions such as section 221 of the 1999 Constitution provides;
“No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any party or to the election expenses of any candidate at an election.”
Quoting the lead judgement in Amaechi’s case
“The above provision(section 221 of 1999 Constitution) effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election. I think that the failure of respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not. In mundane or colloquial terms we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the constitution, it is his party that has won the election.”
The judgement further went to say that in the eyes of the Law it was ameachi name that was sent to INEC and not Omehia. Section 141 of the electoral Act only cured the eyes of the Law to ensure that it doesn’t see a person who has not fully participated in all the stages of election as the winner of that election. Section 141 does nothing more.
The fact that votes belongs to the party was reached on the strength of section 221 of the Constitution. The electoral Act cannot amend the Constitution.
This means that the Supreme Court’s decision in Ameachi v. INEC that votes belongs to the political party was never eroded by the amendment of the Electoral Act
B). CPC v OMBUGADU
This matter was a pre-electlon matter of whether the appellant was duly nominated and sponsored candidate. The decision that is currently bandied about and quoted that Supreme Court held that votes belongs to parties was wrongly quoted. Below is the full quotation of the Supreme Court
The second arm of the issue is the propriety vel non of the consequential order made by the trial Court in view of Section 141 of the Electoral Act (supra). The consequential order reads:
“It is therefore hereby ordered that the 1st defendant returns the 2nd plaintiff as the Winner of the April 9, 2011 National Assembly Election into the House of Representatives of the Federal Republic of Nigeria representing Akwango/Wamba/Nasarawa-Eggon Federal Constituency.” (See page 1056 of the record).
Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms:
“An election tribunal or Court shall not under any circumstance declare any person Winner of an election in which such a person has not fully participated in all the stages of the said election.”
By the above provision, the National Assembly has set aside the decision of this court in Amaechi v. INEC (2008) 5 NWLR (Pt 1080) page 227 at 296. Contrary to the decision of this Court in Amaechi’s case, the implication of Section 141 of the Electoral Act, 2010 (as amended) is that while a candidate at an election must be sponsored by a political party, the candidate who stands to win or lose the election is the candidate and not the political party that sponsored him.
In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsored and before a person can be returned as elected by a tribunal or Court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting.
Having read the full quotation of the Supreme Court on this issue, how does the above translate to mean that votes now belongs to the candidates?
C). Furthermore, needless to say , the decision of Justice Mary Peter-Odilli in OZOMGBACHI v. DENNIS AMADI & Ors is merely an obiter and is not Law or constitute the Judgment of the Supreme Court.
CONCLUSION
The issue of who owns votes casted at election between the party or candidates did not even come up in the matter at all. If it came up the Court will surely interpret section 221, 179 and 68 of the Constitution which the court never did. The above decision of the Court was made in the light of Section 141 of the Electoral Act that the fact of which of the two primaries conducted by CPC should stand and which of the two.candifates.who won the different primaries should be the true candidate of CPC. Nothing bothers or generated the issue of who owns the vote between candidate and parties.That individuals who didn’t take part in the whole stages of election can be declared winner of an election
It becomes quickly clear that the Court did not hold in OZOMGBACHI v. DENNIS AMADI & Ors that votes in an election belongs to the candidates.
The Constitution did not envisage a situation where a candidate can win under a political party and then defect to another party thereby giving votes secured under a party to the other.
